COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued at Norfolk, Virginia 

JAMES ARTHUR PRICE, JR. 

 OPINION BY 

v. Record No. 2313-96-1 JUDGE RICHARD S. BRAY 

 OCTOBER 28, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Verbena M. Askew, Judge 

 (David G. Wittan, on briefs), for appellant. 

 Appellant submitting on brief. 

 Kimberley A. Whittle, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 James Arthur Price, Jr. (defendant), a juvenile transferred 

to the circuit court for trial as an adult, was convicted on 

indictments charging robbery and the related use of a firearm. 

Defendant complains on appeal that he was denied a speedy trial 

in violation of Code § 19.2-243. Finding that defendant was 

continuously in custody in excess of five months from the finding 

of probable cause to the commencement of trial, contrary to 

statute, we reverse the convictions. 

 The pertinent procedural history is uncontroverted. 

Defendant was arrested and incarcerated on September 19, 1995, 

upon petitions alleging the instant offenses. Defendant was then 

on probation and subject to the attendant supervision and 

jurisdiction of the Newport News Juvenile and Domestic Relations 

District Court (district court) as a result of unrelated prior 

offenses. 
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 On motion of the Commonwealth to transfer defendant to the 

circuit court for prosecution as an adult, the district court 

conducted a hearing in accordance with former Code § 16.1-269.11

on October 4, 1995. At the conclusion of these proceedings, the 

district court found "probable cause to believe [defendant] 

committed the delinquent act[s] alleged," ordered him transferred 

and certified to the circuit court for "proper criminal 

[prosecution]," and "[r]emanded to . . . the Newport News City 

Jail." The district court also determined that defendant had 

violated terms of the unrelated probation and "committed" him to 

the custody of the Department of Juvenile Justice (Department). 

Defendant did not appeal either disposition and remained in 

custody on both. 

 Defendant was indicted in the circuit court (trial court) 

for the subject crimes on November 13, 1995, and trial was 

scheduled for December 15, 1995. Subsequently, the prosecutor 

discovered that the trial court had entered no order "advising 

the attorney for the Commonwealth that he may seek an indictment" 

in accordance with Code § 16.1-269.6(B), and, on December 15, 

1995, moved the court to "quash" the November indictments.2

 

 1The 1996 amendments to Code §§ 16.1-269.1 and 16.1-269.6 

expressly apply only "to offenses committed and to records 

created and proceedings held with respect to those offenses on or 

after July 1, 1996." See 1996 Va. Acts chs. 755, 914. Unless 

otherwise specified, this opinion references the controlling 

former statutes, enacted in 1994. 

 2Rule 3A:9(a) of the Rules of the Virginia Supreme Court 

provides that "[d]efenses and objections made before trial that 

heretofore could have been made by other pleas or by demurrers 
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Defendant, though still in custody, did not appear for argument 

on the motion; however, his counsel was present, voiced no 

objection, and the court granted the motion. The record reflects 

no related consideration or modification of defendant's 

continuing custodial status pursuant to the transfer order of 

October 4, 1995. 

 Shortly thereafter, defendant's probation officer, Gregory 

Haywood, learned of the December 15, 1995 proceedings, contacted 

the prosecutor on December 18, 1995, and reminded him that 

defendant was in the custody of the Department. Haywood 

testified that, as a result of the instant offenses, the 

Department had "classified" defendant as a "major offender," 

thereby changing his "length of stay" from "several months" on 

the unrelated probation violation to "indeterminate," pending a 

disposition by the trial court. 

 On January 3, 1996, the trial court entered an order 

properly authorizing the Commonwealth to seek indictments and 

directing that defendant "be transferred from the juvenile 

detention facility to the Newport News City Jail." Accordingly, 

defendant was again indicted on January 8, 1996, and thereafter 

arrested on a capias and "remanded to jail," although already in 

custody dating from arrest on September 19, 1995. He remained in 

and motions to quash shall be made only by motion to dismiss or 

to grant appropriate relief, as provided in these Rules." 

Because the parties and the trial court referenced the 

Commonwealth's "motion to quash" the indictments, this opinion 

adopts such terminology. 
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custody until trial on July 11, 1996. 

 Code § 19.2-243, oftentimes referenced as the "speedy trial 

statute," provides, in pertinent part, that 

 [w]here a general district court has found 

that there is probable cause to believe that 

the accused has committed a felony, the 

accused, if he is held continuously in 

custody thereafter, shall be forever 

discharged from prosecution for such offense 

if no trial is commenced in the circuit court 

within five months from the date such 

probable cause was found by the district 

court; . . . . 

 If there was no preliminary hearing in 

the district court, or if such preliminary 

hearing was waived by the accused, the 

commencement of the running of the five and 

nine months periods, respectively, set forth 

in this section, shall be from the date an 

indictment or presentment is found against 

the accused. 

 If an indictment or presentment is found 

against the accused but he has not been 

arrested for the offense charged therein, the 

five and nine months periods, respectively, 

shall commence to run from the date of his 

arrest thereon.3

 . . . 

 On May 9, 1996, defendant moved to dismiss the prosecutions 

as violative of the speedy trial statute. The trial court denied 

the motion and convicted defendant at trial on July 11, 1996. 

Defendant argues on appeal that "even after the [initial] 

indictments were quashed, the underlying transferred charges 

still rested in the bosom of the [circuit] court, awaiting action 

by the judge in accordance with Code § 16.1-269.6(B)." Thus, 

defendant reasons that he remained in continuous custody on the 

 3The provisions of Code § 19.2-243 do not apply to delays 

occasioned by certain causes not in issue here. 
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offenses from the finding of probable cause by the district court 

on October 4, 1995, until trial on July 11, 1996, a period 

substantially in excess of the five months prescribed by Code 

§ 19.2-243. 

 In response, the Commonwealth suggests that the district 

court proceedings did not constitute a "preliminary hearing" and 

lacked the determination of probable cause contemplated by the 

speedy trial statute. The Commonwealth, therefore, maintains 

that defendant was prosecuted on the indictments of January 8, 

1996, following a nolle prosequi of the previous indictments, 

thus triggering the speedy trial time clock on January 8, 1996, 

not October 4, 1995.4 Moreover, the Commonwealth attributes 

defendant's "continuous custody" to "other charges," which 

excluded the instant prosecution from the limitations of Code 

§ 19.2-243. The Commonwealth's arguments, however, overlook the 

procedural course of the prosecution. 

 Defendant, a juvenile, came before the district court, the 

court having "exclusive, original jurisdiction," upon petitions 

alleging commission of the offenses. See Code § 16.1-241; 

Burfoot v. Commonwealth, 23 Va. App. 38, 45, 473 S.E.2d 724, 728 

(1996) (citing Peyton v. French, 207 Va. 73, 79, 147 S.E.2d 739, 

742 (1966)). On motion of the Commonwealth, the district court 

conducted a transfer hearing pursuant to Code § 16.1-269.1, which 

 

 4If the speedy trial computation begins on January 8, 1996, 

it is undisputed that the trial was timely. 
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provided, in relevant part, that: 

 If a juvenile fourteen years of age or older 

is charged with an offense which would be a 

felony if committed by an adult, the court 

shall, on motion of the attorney for the 

Commonwealth and prior to a hearing on the 

merits, hold a transfer hearing and may 

retain jurisdiction or transfer such juvenile 

for proper criminal proceedings to the 

appropriate circuit court having criminal 

jurisdiction of such offenses if committed by 

an adult. Any transfer to the appropriate 

circuit court shall be subject to the 

. . . condition[] [that] . . . [t]he juvenile 

court finds that probable cause exists to 

believe that the juvenile committed the 

delinquent act as alleged or a lesser 

included delinquent act which would be a 

felony if committed by an adult . . . . 

1994 Va. Acts chs. 859, 949 (emphasis added) (codified as Code 

§ 16.1-269.1 and amended by 1996 Va. Acts chs. 755, 914). Thus, 

the jurisdiction of the circuit court over defendant was 

predicated upon a proper transfer hearing in the district court 

and related order. 

 This statutory scheme "'afford[s] juvenile defendants . . . 

the protection and expertise of the juvenile court during the

preliminary, or certification, hearing stage of a criminal

prosecution.'" Burfoot, 23 Va. App. at 46, 473 S.E.2d at 728 

(emphasis added) (quoting Payne v. Warden, 223 Va. 180, 184, 285 

S.E.2d 886, 888 (1982)). Although the transfer hearing "'is not 

as limited in its scope as a preliminary hearing under the 

criminal procedures applicable to an adult,'" id. at 46, 473 

S.E.2d at 728 (quoting Peyton, 207 Va. at 78, 147 S.E.2d at 742), 

both proceedings require the district court to find probable 
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cause to believe that the accused committed the alleged felonious 

act as a condition to further prosecution of the offense in the 

circuit court. See Code § 16.1-269.1(A)(2); Code § 19.2-218; 

Burfoot, 23 Va. App. at 45, 473 S.E.2d at 728. 

 Accordingly, when the district court certified and 

transferred defendant for trial as an adult in the circuit court, 

the district court necessarily found the requisite probable cause 

contemplated by the speedy trial statute. Because the transfer 

order directed that defendant be "[r]emanded to jail," the 

prescribed five month limitation of Code § 19.2-243 commenced on 

October 4, 1995. It is immaterial that such custody coincided 

with detention of defendant incidental to the unrelated 

commitment. See Funk v. Commonwealth, 16 Va. App. 694, 695-96, 

432 S.E.2d 193, 194 (1993). 

 Following entry of the transfer order by the district court, 

Code § 16.1-269.6(A) directed that "the clerk [of the district 

court] . . . forward . . . all papers connected with the case" to 

the trial court, Code § 16.1-269.6(A), which "shall [then] . . . 

examine all such papers, . . . and enter an order either 

remanding the case to the juvenile court or advising the attorney 

for the Commonwealth that he may seek an indictment." Code 

§ 16.1-269.6(B). Upon authorizing indictment, the circuit court 

must order transfer of the "juvenile from the juvenile detention 

facility to an appropriate local correctional facility," Code 

§ 16.1-269.6(B), and the juvenile court shall be "divest[ed] 
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. . . of its jurisdiction over the case." Code § 16.1-269.6(C). 

 Adherence to the statutory transfer procedure is mandatory and 

jurisdictional. Burfoot, 23 Va. App. at 48-49, 473 S.E.2d at 

730; see Peyton, 207 Va. at 80, 147 S.E.2d at 743. 

 Thus, irrespective of the trial court's order to quash, the 

initial indictments of defendant were a nullity, obtained without 

the benefit of the enabling order required by Code 

§ 16.1-269.6(B). The court simply remedied of record an error or 

oversight in the proceedings, without disturbing the legal 

efficacy of the pending transfer order or effecting a nolle

prosequi. See Cheeks v. Commonwealth, 20 Va. App. 578, 586, 459 

S.E.2d 107, 111 (1995) (reversed and remanded to circuit court a 

conviction resulting from erroneous transfer proceedings in the 

circuit court). Otherwise, the circuit court would have been 

without the procedural vehicle necessary to authorize the January 

8, 1996 indictments pursuant to Code § 16.1-269.6. 

 Accordingly, defendant was held continuously in custody from 

the finding of probable cause in the district court on October 4, 

1995, until trial on July 11, 1996, in violation of Code 

§ 19.2-243, and we must reverse and dismiss the convictions. 

 Reversed and dismissed.